Com. v. McNeal, A.

• Court: Superior Court of Pennsylvania
• Decided: November 17, 2020
• Docket: 1828 MDA 2019
• Status: Unpublished

Opinion

J-S41004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTOINE WILLIAM McNEAL : : Appellant : No. 1828 MDA 2019

Appeal from the Judgment of Sentence Entered February 25, 2019, in the Court of Common Pleas of Luzerne County, Criminal Division at No(s): CP-40-CR-0001933-2017.

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 17, 2020

Antoine William McNeal appeals from the judgment of sentence of 22

years and 4 months to 44 years and 8 months’ incarceration, after a jury

convicted him of murder of the third degree, criminal use of a communication

facility, tampering with or fabricating physical evidence, and robbery. 1 The

Pennsylvania State Police identified McNeal as a suspect in the shooting death

of Brandon Smith by searching McNeal’s cell phone without a warrant. The

suppression court held that McNeal lacked standing to move for suppression.

Because McNeal left a crucial portion of his appellate argument against the

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* Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S.A. § 2501(a), 18 Pa.C.S.A. § 7512(a), 18 Pa.C.S.A. § 4910(1), and 18 Pa.C.S.A. § 3701(a)(1)(i). J-S41004-20

suppression court’s standing determination undeveloped, we must dismiss

that sub-issue as waived and affirm the denial of suppression.

Around 1:00 a.m. on January 18, 2017, Brandon Smith, who was at

home with his mother, began texting someone on his flip phone. Mr. Smith

had not saved the name of the other text messenger in his flip phone, so the

text chain only displayed the other person’s number - (570) 417-6088. See

N.T., 11/26/18, at 10.

They texted back and forth for about an hour. Mr. Smith and the other

text messenger arranged a drug deal. They discussed price and quantity, and

eventually Mr. Smith gave the other person his address. At 2:00 a.m., Mr.

Smith went outside to his family’s van to consummate the sale, but he

returned to the house bleeding from bullet wounds. He died in the hospital

shortly thereafter.

While investigating the van where the shooting occurred, Pennsylvania

State Police discovered and seized two cell phones. One was a damaged LG

phone that belonged to Mr. Smith. The other was a Samsung Galaxy 5S,

which Mr. Smith’s family could not identify. Mr. Smith’s family also turned

over Mr. Smith’s flip phone. The police took all three phones as evidence, and

they powered them down.

The police obtained a search warrant for the data records of the phone

company for (570) 417-6088, the number with which Mr. Smith had been

texting on his flip phone. The metadata revealed that the phone belonging to

that number had been near the murder scene, someone had powered that

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phone down, and the owner of that account had changed the number to (570)

574-4534. The phone company continued providing police with data about

the new number and informed them that Wakeelah Moore had called (570)

417-6088 several times after the shooting.

Police met with Ms. Moore. She told them that the two numbers on

which they were collecting data belonged to her boyfriend, Antoine McNeal.

At this point, the police still did not know the owner of the Samsung Galaxy

5S. See N.T., 11/26/18, at 28-30. Next, the police returned to their barracks

with a theory that its owner might be McNeal and that it could tie him to the

crime. In their evidence room, they powered on the Galaxy 5S and dialed

(570) 574-4534 from their landline. It rang and displayed the number for the

barracks’ evidence room. The police then used this information to obtain a

search warrant for other data in the Galaxy 5S.

They arrested McNeal for the murder of Mr. Smith and other crimes.

McNeal moved to suppress the evidence that investigators had obtained

from their warrantless search of his phone under the Fourth Amendment to

the Constitution of the United States and Article I, § 8 of the Constitution of

the Commonwealth of Pennsylvania. A week later, the Commonwealth filed a

brief opposing that motion. It asserted (1) dialing (570) 574-4534 from the

evidence room was not a search; (2) McNeil had no expectation of privacy in

his phone number and he abandoned his phone, thereby forfeiting any

standing in this case; and (3) discovery of the evidence was inevitable. See

3/12/18 Brief in Opposition to Defendant’s Motion to Suppress.

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Eight months later, the suppression court conducted a hearing on the

motion. The Commonwealth called one witness: Pennsylvania State Trooper

Edward Urban, who investigated the homicide. McNeal presented no evidence

and called no witnesses. The suppression court accepted the Commonwealth’s

legal theories and denied the motion to suppress. The case proceeded to a

jury, which convicted McNeal, and the common pleas court sentenced him as

described above.

This timely appeal followed.

McNeal raises one issue. He asks whether the suppression court erred

or abused its discretion in failing to suppress the search of his Galaxy 5S and

all evidence connected thereto. See McNeal’s Brief at 4.

In his argument, McNeal he presents three sub-issues. First, he asserts

he did not abandon his phone in Mr. Smith’s van and therefore has standing

to bring his motion to suppress. Second, he avers that turning on and calling

his Galaxy 5S from the evidence room were searches. And third, he argues

that the inevitable-discovery doctrine does not apply. His sub-issues present

pure questions of constitutional law, for which “our scope of review is plenary,

and the standard of review is de novo.” Commonwealth v. Walker, 185

A.3d 969, 974 (Pa. 2018).

As mentioned above, the suppression court ruled that McNeal lacked

standing to challenge the police conduct at issue. The court deemed the

Samsung Galaxy 5S abandoned property, in which McNeal had no legitimate

privacy interest that society was prepared to recognize as reasonable for

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purposes of constitutional law. McNeal challenges that determination on

appeal.

The Fourth Amendment and Article I, § 8 only provide their protections

from unreasonable searches and seizures to items that, at the time of the

search or seizure, remain within a zone of privacy that the two constitutions

are willing to shield from the government’s view. If the item seized or search

is outside that zone of privacy, then the defendant lacks standing to challenge

a search or seizure of it. See, e.g., Commonwealth v. Kane, 210 A.3d 324,

330 (Pa. Super. 2019) (holding that a smartphone deliberately hidden inside

a dormitory bathroom to video the people therein was “abandoned property”

for constitutional purposes).

The burden is on the defendant to establish that he has standing to raise

a constitutional objection to police procedures. To do so, “a defendant must

demonstrate a legitimate expectation of privacy in the area searched or effects

seized, and such expectation cannot be established where a defendant has

meaningfully abdicated his control, ownership, or possessory interest.”

Commonwealth v. Dowds, 761 A.2d 1125, 1131 (Pa. 2000). The

legitimate-expectation-of-privacy test “is a twofold requirement, first that a

person have exhibited an actual (subjective) expectation of privacy and,

second, that the expectation be one that society is prepared to recognize as

‘reasonable.’” Katz v. United States, 389 U.S. 347, 361, (1967) (Harlan, J.

concurring); Commonwealth v. Lowery, 451 A.2d 245, 247 (Pa. Super.

1982) (accord).

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McNeal draws upon several facts to demonstrate that, subjectively, he

believed the Galaxy 5S was still his private phone, even after the police seized

it. He indicates that there is no evidence of record showing that he either

intentionally left his cell phone behind or that he denied ownership of it. See

McNeal’s Brief at 25. Based on his girlfriend’s testimony at trial, McNeal claims

that she advised the troopers “that her phone had indeed been used to call

the Samsung Galaxy phone, after the shooting, in an attempt to locate [the

Galaxy 5S].” Id. at 26. He then further relies upon Ms. Moore’s trial

testimony that she and McNeal returned to the crime scene to look for the

Galaxy 5S, but they could not find it. See id. Finally, McNeal emphasizes the

fact that he changed the cell phone number for the Galaxy 5S shortly after

the murder of Mr. Smith. McNeal believes that this evidences his intent to

reclaim the cell phone, rather than simply disconnecting it from the wireless

account. See id. at 26-27.

Even if we accepted that those facts prove McNeal had a subjective

expectation of privacy in his Galaxy 5S after leaving it in the van, McNeal

never asserts that his expectation of privacy is a reasonable one that society

is prepared to recognize as constitutionally legitimate. He makes no argument

as to why, as a matter of constitutional law, his expectation of privacy satisfies

the objective portion of the Katz standing test. What is it about a smartphone

that entitles it to enhanced protections from searches that, if accidentally

forgotten at a crime scene, other evidence — like a bag of weapons — lacks?

See, e.g., Commonwealth v. Shoatz, 366 A.2d 1216 (Pa. 1976) (holding

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that luggage containing weapons and other instruments of a crime abandoned

when dropped in flight from the police).

Like the Supreme Court of the United States and the Supreme Court of

Pennsylvania, we recognize that cell phones are highly sensitive, digital

gateways into their owner’s private affairs. See Riley v. California, 573 U.S.

373 (2014); Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018). Society

might very well recognize McNeal’s continuing expectation of privacy in his

Galaxy 5S as reasonable, under the totality of these circumstances, especially

given the nature of cell phones and the High Court’s comparison between them

and a person’s home. Riley at 396-97. However, McNeal does not make such

a claim or expound upon this objective portion of the two-fold standing test.

By addressing only the subjective part and not the objective part of his

standing argument McNeal only developed his sub-issue on standing halfway.

The Pennsylvania Rules of Appellate Procedure and the precedents of

this Court require us to dismiss underdeveloped arguments as waived. See

Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014). “This Court

will not act as counsel and will not develop arguments on behalf of an

appellant.” Id. Due to McNeal’s failure to address the objective prong of the

Katz test, we cannot decide the merits of his constitutional claim that he has

standing, without also supplying him with the second half of his argument on

this sub-issue. This we may not do. See Ramsden, supra. Instead, we

must dismiss this first sub-issue as waived.

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Because McNeal has waived his appellate sub-issue on standing, his

other two sub-issues are now moot. As such, we dismiss them as well.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/17/2020

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